If you’re involved in a legal dispute, you may be able to settle it without going to court. One way to do this is to work out a solution with the help of a mediator-a neutral third-person. Unlike a judge or an arbitrator, a mediator will not take sides or make decisions, but will help each party evaluate goals and options in order to find a solution that works for everyone. The only exception to this rule is made for certain types of child custody mediations; in those cases, a mediator has the power to send both parties to a judge if they cannot agree.
Mediation is required in some states, and in a number of cities and counties. Where required, mediation usually takes place right at the courthouse, with the right to have the case heard by a judge if mediation is unsuccessful. In areas where mediation is recommended but not required, the court will often refer you to a community mediation service, located away from the courthouse.
When you reach an agreement with an opposing party through mediation, you can make it legally binding by writing down your decisions in the form of an enforceable contract. Or, in some areas, you can have your agreement made part of a court judgement.
What Kinds of Cases Can Be Mediated?
Most noncriminal matters can be mediated. And sometimes mediation is available even when courts are not.
Most civil (noncriminal) disputes can be mediated, including those involving contracts, leases, small business ownership, employment and divorce. For example, a divorcing couple might mediate to work out a mutually agreeable child custody agreement, or estranged business partners might choose mediation to work out an agreement to divide their business. Nonviolent criminal matters, such as claims of verbal or other personal harassment, can also be successfully mediated.
Although there are hundreds of thousands of laws on the books, many types of common disputes simply do not raise a legal claim that you can take to court. Disputes between family members, employees or neighbors are sometimes of this type. Fortunately, mediation is available even when courts are not.
For example, suppose a suburban homeowner finds that the formal legal system offers no realistic way to deal with his neighbor’s overly bright driveway lights that shine in his bedroom window. Mediation, he discovers, does offer a positive way to tackle this dispute.
In mediation, each neighbor would be invited to present all areas of dispute. It might turn out that the neighbor with the bright light was deliberately leaving it on in part because his neighbor’s dog constantly pooped on his lawn or his son’s pickup often blocked a shared driveway. In short, since mediation is designed to surface and solve all problems, it offers a way to discuss and hopefully solve all outstanding problems and create a truly lasting peace.
Mediate Your Small Claims Case
Learn the basics of settling your small claims case through mediation-without going to court.
Increasingly, Small Claims courts are encouragingÂ – and in some areas requiringÂ – people with disputes to attempt to settle them through court-sponsored mediation. Whether you are suing or being sued in small claims, ask if your court sponsors or makes referrals to a mediation program.
How It Works
In mediation, you and the other party meet with a neutral third person who helps you try to arrive at your own solution. Mediation is now mandatory in some Small Claims Courts and optional in many others. The goal is that before a case is heard by a judge, you get an opportunity to craft your own compromise.
When you file a small claims case, the clerk of the court may assign you to mediation or strongly suggest that you look into it. Mediators may be available right in the courthouse, or you may be referred to a local mediation service.
Some mediators work for free; others are paid a modest fee by the court. They are trained to help people talk about their disputes and come up with reasonable solutions. (Most mediators aren’t lawyers, in case you were worried about being trapped in a room with both your opponent and a statute-spouting attorney.)
Because mediators, unlike judges, have no power to impose a solution, mediation sessions tend to be much more relaxed than a court proceeding. They may last from 30 minutes to three hours.
Mediation also allows you to bring up other issues that may be poisoning your relationship and would not be considered relevant in court. For example, a dispute over a neighbor’s tree may really have its roots in a perceived slur about the neighbor’s race, religion or taste in motorcycles.
If you’re convinced that your opponent is totally unreasonable, you may wonder why you should waste time mediating. But experience shows that when the parties to a Small Claims Court case voluntarily agree to mediate, the overwhelming majority of disputes are settled. Even when people who don’t want to mediate are forced to go through the process, mediation gets results: In Maine, where judges have the power to order that cases go to mediation, about 50% of the mediated cases settle.
Settlement is especially likely when, deep down, one or both parties want to arrive at a solution that is at least minimally acceptable to the other party. This is particularly common in disputes between neighbors or small business people who work in the same area and really don’t want the dispute to fester.
Mediation has other benefits, too. According to a 1992 study by the National Center for State Courts, people who agree to mediate their cases are more likely to be satisfied with the outcome than are small claims litigants who go directly to court, . One big reason for this is that people who arrive at a mediated settlement are more likely to pay up than are people who lose at trial.
Mediation isn’t a good idea in every case. If you are determined to get every penny you are asking for, and you don’t have an ongoing relationship with the other party, bypassing mediation and going directly to Small Claims Court (except in the few places where mediation is mandatory) makes the best sense.
For example, let’s say you moved out of your apartment and left it undamaged and spotless, but the manager made up a bogus reason to avoid refunding your $1,500 deposit. You could well decide that proposing mediation is a waste of time, because you are pretty sure that in court you’ll win the entire $1,500, plus a $500 penalty, as provided by your state’s rental deposit law.
If you do want to mediate, how can you get a reluctant opponent to the table if mediation isn’t mandatory? Mediators can help with that, too. Typically, as soon as you notify a local court-sponsored or community mediation program that you would like to try mediation, (notification is often automatic with a court-sponsored program), someone from the mediation program will contact the other party and try to arrange a mediation session. They have lots of practice at convincing reluctant people to sit down at the bargaining table.
If you’re the one being sued, or you’ve received a letter threatening suit, should you ask for mediation? The answer is almost always a resounding yes, if you have a defense to all or part of the plaintiff’s claim, or believe that while the plaintiff may have a decent case, he is asking for too much. You really don’t have anything to lose.
Why Consider Mediation?
Compared to a lawsuit, mediation is swift, confidential, fair and low cost. Here’s a full explanation of its advantages.
If you’ve given up on negotiating a settlement of your dispute directly with the other party, mediation may be the most painless and efficient way to solve it. Compared to a lawsuit, mediation is swift, confidential, fair and low cost. Mediation sessions are usually scheduled within a few weeks or, at most, a couple of months, from the time of a requestÂ – and most sessions last only a few hours or a day, depending on the type of case. In contrast, lawsuits often take many months, or even years, to resolve.
Mediation is particularly valuable when your dispute involves another person with whomÂ – either by choice or circumstanceÂ – you need to remain on good terms. This may include family members, co-workers or business partners, your landlord, neighbors or others with whom you have a continuing personal or business relationship. Lawsuits polarize and ultimately ruin relationships. A huge advantage of mediation is its ability to get a dispute resolved without destroying a relationship.
Another advantage of mediation is confidentiality. With very few exceptions (for example, where a criminal act or child abuse is involved), what you say during mediation cannot legally be revealed outside the mediation proceedings or used later in a court of law. By contrast, one of the drawbacks to going to court is that, by and large, everything said or submitted in connection with a lawsuit becomes available to the public. Only by a special order of a judge can information be “sealed” from public exposure. So whether your desire is to protect trade secrets or just to avoid washing your dirty laundry in public, your privacy will be substantially greater with mediation rather than litigation.
In addition, mediation will nearly always save you money. In many parts of the country, nonprofit community mediation centers handle relatively minor consumer, neighborhood, workplace and similar disputes for free or for a nominal charge. Private dispute resolution companies tackle more complex cases for a fraction of the cost of bringing a lawsuit. A half-day mediation of a personal injury claim, for example, may cost each side about $500. By comparison, a full-scale court battle could cost $50,000 or more, sometimes much more.
Finally, consider that agreements reached through mediation are more likely to be carried out than those imposed by a judge. When folks go to court, the losing party is almost always angry and often prone to look for ways to violate the letter or spirit of any judgment. In contrast, a number of studies show that people who have freely arrived at their own solutions through mediation are significantly more likely to follow through.